By Collin County Criminal Lawyer Jeremy Rosenthal
With states such as Colorado and Washington legalizing marijuana, marijuana “edibles” arrests are becoming more and more common in Texas.
Edibles are generally types of marijuana which can be consumed in different edible ways such as chocolate bars, brownies, and even beef jerky.
The Law of Possession is No Different
The law of possession of an edible form of Marijuana is no different than possession of other illegal drugs in some ways but different in others. This is to say “possession” as defined by Tex.Pen.C. 1.07 (39) is “actual care, custody, control or management” of any contraband which may be illegal.
What is Different About Texas Law on Edibles?
There are two main differences. One is the active ingredient is not identical to the marijuana in it’s natural form and that makes a difference in how the case is charged. The other is the weight of the edibles make the charge worse.
Drug Weight — Adulterants and Diluents
Drug weight is the more significant factor. The seriousness of a criminal charge is generally due to the weight of the drug seized by law enforcement. The weight of the drug is not just the weight of the active ingredient but also what are known as the “adulterants and diluents.”
Good examples of common “adulterants and diluents” appear in common street drugs such as methamphetamine and heroin as ways to enhance those drugs.
It’s a safe bet the Texas legislature didn’t have edible marijuana and the weight of cookie dough, cake batter, or butter in mind for adding to the degree of the charge.
So What is the Bottom Line?
Being in possession of a pot-brownie or chocolate bar takes what would be thought to be an average drug possession case and turns it into First or Second Degree Felony based on the type and weight.
But there is silver lining in two forms. First is aggregating an edible marijuana possession case to first or second-degree felony status is such an over-reach prosecutors would hopefully be inclined to treat the cases for what they are — simple drug possession cases.
Second is even if the prosecutor won’t treat the case appropriately — a jury can still be made to decide whether batter and chocolate are truly “adulterants and diluents” the same way street products can be used to enhance methamphetamine or crack-cocaine.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice. For legal advice about this or any situation you should contact an attorney directly.